EXHIBIT 3(b)
BY-LAWS
OF
ANADARKO PETROLEUM CORPORATION
AMENDED AND RESTATED AS OF DECEMBER 1, 2003
ARTICLE I
OFFICE AND RECORDS
1.1. The Corporation shall maintain a registered office in
Delaware, and may maintain such other offices and keep its books, documents and
records at such places within or without Delaware as may from time to time be
designated by the Board of Directors.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1. All meetings of the stockholders of the Corporation shall be
held at such place or places, within or without the State of Delaware, as may
from time to time be fixed by the Board of Directors, or as shall be specified
or fixed in the respective notices or waivers of notice thereof.
2.2. The Annual Meeting of Stockholders shall be held on such date
and at such time as may be fixed by the Board and stated in the notice thereof,
for the purpose of electing directors and for the transaction of only such other
business as is properly brought before the meeting in accordance with these
By-Laws.
To be properly brought before the meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board, (b) otherwise properly brought before the meeting by
or at the direction of the Board, or (c) otherwise properly brought before the
meeting by a stockholder. In addition to any other applicable requirements, for
business to be properly brought before the Annual Meeting by a stockholder, the
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation, not
less than 50 days nor more than 75 days prior to the meeting; provided, however,
that in the event that less than 65 days' prior public disclosure of the date of
the meeting is made to stockholders, notice by the stockholder to be timely must
be so received not later than the close of business on the 15th day following
the day on which such public disclosure was made or notice of the date of the
meeting was mailed, whichever first occurs. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to bring
before the Annual Meeting (i) a brief description of the business desired to be
brought before the Annual Meeting and the reasons for conducting such business
at the Annual Meeting, (ii) the name and record address of the stockholder
proposing such business, (iii) the class and number of shares of the Corporation
which are beneficially owned by the stockholder and (iv) any material interest
of the stockholder in such business.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be transacted at the Annual Meeting except in accordance with the
procedures set forth in this Section, provided, however, that nothing in this
Section shall be deemed to preclude discussion by any stockholder of any
business properly brought before the Annual Meeting.
The Chairman of the Annual Meeting shall, if the facts warrant,
determine and declare to the meeting that certain business was not properly
brought before the meeting in accordance with the provisions of this Section,
and if he should so determine, he shall so declare to the meeting and any such
business not properly brought before the meeting shall not be transacted.
2.3. Special meetings of the stockholders shall be called by the
Board. The business transacted at a special meeting shall be confined to the
purposes specified in the notice thereof. Special meetings shall be held at such
date and at such time as the Board may designate.
2.4. Written notice of each meeting of stockholders, stating the
place, date and hour of the meeting, and the purpose or purposes thereof, shall
be mailed not less than ten nor more than sixty days before the date of such
meeting to each stockholder entitled to vote thereat.
2.5. Unless otherwise provided by statute, stockholders entitled to
cast a majority of the total votes entitled to be cast by all stockholders at a
meeting, present either in person or by proxy, shall constitute a quorum at such
meeting. The Secretary of the Corporation (or in his absence an Assistant
Secretary or an appointee of the presiding officer of the meeting) shall act as
the Secretary of the meeting. Whether or not a quorum is present, holders of
shares of stock entitled to cast a majority of votes present at a meeting, in
person or by proxy, may adjourn the meeting from time to time to another time or
place, at which time, if a quorum is present, any business may be transacted
which might have been transacted at the meeting as originally scheduled. Notice
need not be given of the adjourned meeting if the time and place thereof are
announced at the meeting at which the adjournment is taken, unless the
adjournment is for more than thirty days or a new record date is fixed for the
adjourned meeting, in which event a notice of the adjourned meeting shall be
given to each stockholder of record entitled to vote at the meeting.
2.6. Each stockholder entitled to vote at any meeting shall be
entitled, for each share held of record on the record date fixed as provided in
Section 10.3 of Article X of these By-Laws for determining the stockholders
entitled to vote at such meeting, to a number of votes (in person or by written
proxy) determined as provided in the Restated Certificate of Incorporation.
Except as otherwise provided by statute or by the Restated Certificate of
Incorporation or these By-laws, the vote of a plurality of the votes cast shall
be sufficient to elect directors and for all other matters the affirmative vote
of the majority of shares present in person or represented by proxy at the
meeting and entitled to vote on the subject matter shall be the act of the
stockholders.
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Elections of directors need not be by ballot; provided however, that by
resolution duly adopted, a vote by ballot may be required.
2.7. Any stockholder entitled to vote upon any matter at any
meeting of stockholders may so vote by proxy. Every proxy shall be in writing
(which shall include telegraphing or cabling) subscribed by the stockholder or
his duly authorized attorney, and shall be dated, but need not be sealed,
witnessed or acknowledged. Proxies shall be delivered to the Secretary of the
Corporation before such meeting.
2.8. At each meeting of the stockholders the polls shall be opened
and closed, the proxies and ballots shall be received and be taken in charge,
and all questions touching the qualification of voters and the validity of
proxies and the acceptance or rejection of votes shall be decided by three
inspectors, two of whom shall have power to make a decision. Such inspectors
shall be appointed by the Board before the meeting, or in default thereof by the
presiding officer at the meeting, and shall be sworn to the faithful performance
of their duties. If any of the inspectors previously appointed shall fail to
attend or refuse or be unable to serve, substitutes shall be appointed by the
presiding officer.
ARTICLE III
BOARD OF DIRECTORS
3.1. The business and affairs of the Corporation shall be managed
by or under the direction of a Board of Directors consisting of not less than
six (6) nor more than fifteen (15) directors, the exact number of directors to
be determined from time to time by resolution adopted by affirmative vote of a
majority of the entire Board of Directors. The directors shall be divided into
three classes, designated Class I, Class II and Class III. Each class shall
consist, as nearly as may be possible, of one-third of the total number of
directors constituting the Board of Directors. At a special meeting of
stockholders held August 27, 1986, Class I directors were elected for a term
ending at the 1987 Annual Meeting of Stockholders, Class II directors were
elected for a term ending at the 1988 Annual Meeting of Stockholders, and Class
III directors were elected for a term ending at the 1989 Annual Meeting of
Stockholders, in each case effective as of the date of filing of the Restated
Certificate of Incorporation with the Secretary of State of the State of
Delaware. At each Annual Meeting of Stockholders beginning in 1987, successors
to the class of directors whose term expires at that Annual Meeting shall be
elected for a three-year term. If the number of directors is changed, any
increase or decrease shall be apportioned among the classes so as to maintain
the number of directors in each class as nearly equal as possible, and any
additional director of any class elected to fill a vacancy resulting from an
increase in such class shall hold office for a term that shall coincide with the
remaining term of that class, but in no case will a decrease in the number of
directors shorten the term of any incumbent director. A director shall hold
office until the Annual Meeting for the year in which his term expires and until
his successor shall be elected and shall qualify, subject, however, to prior
death, resignation, retirement, disqualification or removal from office. Any
vacancy on the Board of Directors that results from an increase in the number of
directors may be filled by a majority of the Board of Directors then in office,
provided that a quorum is present, and any other vacancy
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occurring in the Board of Directors may be filled by a majority of the directors
then in office, even if less than a quorum, or by a sole remaining director. Any
director elected to fill a vacancy not resulting from an increase in the number
of directors shall have the same remaining term as that of his predecessor.
Subject to the rights of the holders of any series of Preferred Stock
then outstanding, any director, or the entire Board of Directors, may be removed
from office at any time, but only for cause.
3.2. The Board of Directors may exercise all such powers of the
Corporation and do all such lawful acts and things as are not by the laws of
Delaware, by the Restated Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
ARTICLE IV
MEETINGS OF THE BOARD
4.1. The first meeting of the Board of Directors after the Annual
Meeting of Stockholders may be held without notice, either immediately after
said meeting of stockholders and at the place where it was held, or at such
other time and place, whether within or without Delaware, as shall be fixed by
the vote of the stockholders at the Annual Meeting, or by the consent in writing
of all the directors.
4.2. Regular meetings of the Board may be held without notice at
such time and place, whether within or without Delaware, as shall from time to
time be determined by the Board.
4.3. Special meetings of the Board of Directors shall be called by
the Secretary at the request in writing of the Chief Executive Officer or of any
three directors. Such request shall state the purpose or purposes of the
proposed meeting. Such meetings may be held at any place, whether within or
without Delaware. Notice of each such meeting shall be given by the Secretary to
each director at least three days before the meeting. Such notice shall set
forth the time and place at which the meeting is to be held and the purpose or
purposes thereof. No such notice of any given meeting need be given to any
director who files a written waiver of notice thereof with the Secretary, either
before or after the meeting.
4.4. A quorum for the transaction of business at meetings of the
Board of Directors shall consist of a majority of the directors then in office,
but in no event less than one-third of the whole Board. In the absence of a
quorum at any duly scheduled or duly called meeting, a majority of the directors
present may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum is present, at which time any
business may be transacted which might have been transacted at the meeting as
originally scheduled.
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ARTICLE V
COMMITTEES OF THE BOARD
5.1. General.
(a) The Board of Directors may, by resolution passed by a majority
vote of the full membership of the Board, designate one or more committees, each
committee to consist of two or more directors. The Board may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. Any such committee shall
have and may exercise such powers as are designated in the resolution of the
Board or set forth in these By-Laws.
(b) Unless he resigns, dies or is removed prior thereto, each
member of a committee shall continue to hold office until the first meeting of
the Board following the first Annual Meeting of Stockholders next following his
designation, and until his successor has been designated. Resignations of
members of a committee must be in writing and shall be effective upon the date
of receipt thereof by the Secretary or upon the effective date specified
therein, whichever date is later, unless acceptance is made a condition of the
resignation, in which event it shall be effective upon acceptance by the Board.
Any member of a committee may be removed at any time, with or without cause, by
a majority vote of the full membership of the Board.
(c) Regular meetings of a committee may be held without notice at
such time and place as shall from time to time be determined by the committee.
Special meetings of a committee shall be called by the Secretary at the request
of the Chief Executive Officer or of any two members of the committee. Notice of
each special meeting of a committee shall be given by the Secretary to each
member of the committee. No such notice of any meeting need be given to any
member of a committee who attends the meeting or who files a written waiver of
notice thereof with the Secretary, either before or after the meeting.
(d) Unless the Board of Directors otherwise provides, each
committee designated by the Board may adopt, amend and repeal rules for the
conduct of its business. In the absence of a provision by the Board, a provision
in the rules of such committee or a provision in the By-Laws to the contrary, a
majority of the entire number of members of such committee shall constitute a
quorum for the transaction of business, and the vote of a majority of the
members present at a meeting at the time of such vote if a quorum is then
present shall be the act of such committee. If the Board has not designated
alternate members of a committee, or if all such alternates are absent or
disqualified from voting, the member or members of the committee present at any
meeting and not disqualified from voting, whether or not he or they constitute a
quorum, may in the absence or disqualification of any member of the committee
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of such absent or disqualified member.
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(e) Each committee may designate a chairman of such committee by
majority vote of the committee's full membership, unless designation of a
chairman is otherwise specified in these By-Laws or provided by resolution of
the Board of Directors.
5.2. Executive Committee.
(a) The Board of Directors may designate an Executive Committee.
During the intervals between meetings of the Board, the Committee shall advise
with and aid the officers of the Corporation in all matters concerning its
interests and the management of its business, and generally perform such duties
as may be directed by the Board of Directors from time to time. The Committee
shall have and may exercise all the powers and authority of the Board in the
management of the business and affairs of the Corporation while the Board is not
in session, and may authorize the seal of the Corporation to be affixed to all
papers which may require it; but the Committee shall not have power or authority
in reference to amending the Restated Certificate of Incorporation, adopting an
agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation's property and
assets, recommending to the stockholders a dissolution of the Corporation or a
revocation of a dissolution, amending the By-Laws, filling newly created
directorships and vacancies on the Board or the Committee, or (unless expressly
authorized by resolution of the Board) declaring a dividend or authorizing the
issuance of stock.
(b) A quorum for the transaction of business at meetings of the
Executive Committee shall consist of a majority of the members of the Committee
then in office.
(c) The Executive Committee shall keep regular minutes of
proceedings, copies of which shall be sent to each member of the Board of
Directors.
ARTICLE VI
COMPENSATION OF DIRECTORS
6.1. Each director and each advisory director shall, in
consideration of his serving as a director or advisory director, be paid by the
Corporation such reasonable compensation as shall be fixed from time to time by
resolution of the Board of Directors, together with traveling, food, lodging and
other expenses incurred in attending meetings of the Board; provided that no
director or advisory director who is also an employee of the Corporation shall
be entitled to receive any compensation for his services as a director or
advisory director.
6.2. Members of committees of the Board of Directors may receive
such reasonable compensation for their services as may be fixed from time to
time by resolution of the Board of Directors; provided that nothing herein
contained shall be construed to preclude any member of any committee from
serving the Corporation in any other capacity and receiving compensation
therefor.
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ARTICLE VII
OFFICERS
7.1. General.
(a) The officers of the Corporation shall be chosen by the Board
of Directors. The principal officers shall be a Chief Executive Officer, a
President, one or more Vice Presidents (one or more of whom may be designated
Executive Vice President, one or more of whom may be designated Group Vice
President and one or more of whom may be designated Senior Vice President), a
Secretary, a Treasurer, a Controller, and a General Counsel. The principal
officers shall be elected each year at the first meeting of the Board of
Directors after the Annual Meeting of the Stockholders of the Corporation. Two
or more offices may be held by the same person. The Chairman of the Board shall
be chosen by the directors from their own number and may be an officer of the
Corporation as the Board may determine. The salaries of the principal officers
of the Corporation shall be fixed by the Board or a committee of the Board.
(b) The Board may appoint such other officers, assistant officers
and agents as it shall deem necessary, who shall hold their offices for such
terms and shall exercise such powers and perform such duties as shall be
determined by the Board. The salaries of persons appointed under this section
may be fixed by the Chief Executive Officer, who shall report to the Board
annually thereon.
(c) Unless he resigns, dies or is removed prior thereto, each
officer of the Corporation shall hold office until his successor has been chosen
and has qualified.
7.2. Chief Executive Officer.
(a) The Board of Directors shall designate the Chief Executive
Officer of the Corporation.
(b) All other officers of the Corporation shall be subordinate to
the Chief Executive Officer and shall from time to time report to him as he may
direct. He shall have general supervision and direction of the business of the
Corporation and shall see that all orders and resolutions of the Board are
carried into effect.
(c) He shall have all the general powers and duties usually vested
in the chief executive officer of a corporation, and in addition shall have such
other powers and perform such other duties as may be prescribed from time to
time by the Board of Directors.
7.3. Chairman of the Board.
(a) The Chairman of the Board shall preside at all meetings of the
stockholders and directors.
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(b) He shall be a member and chairman of the Executive Committee.
(c) He shall have such other powers and perform such other duties
as may be prescribed from time to time by the Board of Directors.
7.4. Vice Chairman of the Board.
(a) If the Board chooses a Vice Chairman of the Board, he shall
preside at meetings of the stockholders or directors in the absence or
disability of the Chairman of the Board.
(b) He shall have such other powers and perform such other duties
as may be prescribed from time to time by the Board of Directors.
7.5. President.
(a) He shall have such other powers and perform such other duties
as may be prescribed from time to time by the Board of Directors.
(b) He shall, if designated Chief Executive Officer, have all the
power and duties granted and delegated to the Chief Executive Officer by these
By-Laws. If not designated Chief Executive Officer, he shall be vested with all
the powers and authorized to perform all the duties of the Chief Executive
Officer in his absence or disability.
7.6. Executive Vice President.
If the Board designates one or more Executive Vice Presidents, such
officer or officers shall have such powers and perform such duties as may be
prescribed from time to time by the Board of Directors or the Chief Executive
Officer and shall be vested with all the powers and authorized to perform all
the duties of the Chairman of the Board, the Vice Chairman of the Board and the
President in the absence or disability of all of said officers. Each Executive
Vice President shall have all the powers and duties granted and delegated to
each Group Vice President, Senior Vice President and Vice President by these
By-Laws.
7.7. Group Vice President.
If the Board designates one or more Group Vice Presidents, such officer
or officers shall have general direction of and supervision over such operating
offices of the Corporation or over such departments of the Corporation and its
subsidiaries as the Board of Directors or the Chief Executive Officer may
prescribe. Each Group Vice President shall have all the powers and duties
granted and delegated to each Vice President (other than the Executive Vice
Presidents) by these By-Laws and shall have such other powers and perform such
other duties as may be prescribed from time to time by the Board of Directors or
the Chief Executive Officer. In the absence or disability of the President and
the Executive Vice Presidents, each Group Vice President shall be vested with
all the powers and authorized to perform all the duties of said
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officers.
7.8. General Counsel.
If the Board designates a General Counsel, the General Counsel shall be
the principal legal officer of the Corporation. He shall have general direction
of and supervision over the legal affairs of the Corporation and shall advise
the Board of Directors and officers of the Corporation on all legal matters. He
shall have such other powers and perform such other duties as may be prescribed
from time to time by the Board of Directors or the Chief Executive Officer.
7.9. Senior Vice President.
If the Board designates one or more Senior Vice Presidents, such
officer or officers shall have such powers and perform such duties as may be
prescribed from time to time by the Board of Directors or the Chief Executive
Officer. In the absence or disability of the President, the Executive Vice
Presidents and the Group Vice Presidents, each Senior Vice President shall be
vested with all the powers and authorized to perform all the duties of said
officers.
7.10. Vice President.
Each Vice President shall have such powers and perform such duties as
may be prescribed from time to time by the Board of Directors or the Chief
Executive Officer. In the absence or disability of the President, the Executive
Vice Presidents, the Group Vice Presidents and the Senior Vice Presidents, each
Vice President shall be vested with all the powers and authorized to perform all
the duties of said officers.
7.11. Secretary.
The Secretary shall attend all sessions of the Board and all meetings
of the stockholders and record all votes and the minutes of all proceedings in a
book to be kept for that purpose. He shall perform like duties for committees of
the Board when required. He shall give, or cause to be given, notice of all
meetings of the stockholders and of the Board of Directors, when notice is
required by these By-Laws. He shall have custody of the seal of the Corporation,
and, when authorized by the Board of Directors, or when any instrument requiring
the corporate seal to be affixed shall first have been signed by the Chairman of
the Board, the Vice Chairman of the Board, the President or any Vice President,
shall affix the seal to such instrument and shall attest the same by his
signature. He shall have such other powers and perform such other duties as may
be prescribed from time to time by the Board of Directors or the Chief Executive
Officer.
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7.12. Assistant Secretary.
If the Board appoints one or more Assistant Secretaries, each Assistant
Secretary shall be vested with all the powers and authorized to perform all the
duties of the Secretary in his absence or disability. The performance of any act
or the execution of any instrument by an Assistant Secretary in any instance in
which such performance or execution would customarily have been accomplished by
the Secretary shall constitute conclusive evidence of the absence or disability
of the Secretary. Each Assistant Secretary shall perform such other duties as
may be prescribed from time to time by the Board of Directors or the Chief
Executive Officer.
7.13. Treasurer.
(a) The Treasurer shall have custody of the corporate funds and
securities, and he shall keep full and accurate accounts of receipts and
disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation, in
such depositories as may be designated by the Board of Directors.
(b) He shall disburse the funds of the Corporation as ordered by
the Board, taking proper vouchers for such disbursements, and shall render to
the Chief Executive Officer and the Board of Directors, at the regular meetings
of the Board, or whenever they may require it, an account of all his
transactions as Treasurer and of the financial condition of the Corporation.
(c) If required by the Board of Directors, he shall give the
Corporation a bond in a sum and with one or more sureties satisfactory to the
Board, for the faithful performance of the duties of his office, and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
(d) He shall have such other powers and perform such other duties
as may be prescribed from time to time by the Board of Directors or the Chief
Executive Officer.
7.14. Assistant Treasurer.
If the Board appoints one or more Assistant Treasurers, each Assistant
Treasurer shall be vested with all the powers and authorized to perform all the
duties of the Treasurer in his absence or disability. The performance of any act
or the execution of any instrument by an Assistant Treasurer in any instance in
which such performance or execution would customarily have been accomplished by
the Treasurer shall constitute conclusive evidence of the absence or disability
of the Treasurer. Each Assistant Treasurer shall perform such other duties as
may be prescribed from time to time by the Board of Directors or the Chief
Executive Officer.
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7.15. Controller.
The Controller shall be the principal accounting officer of the
Corporation. He shall maintain adequate records of all assets, liabilities and
transactions of the Corporation and shall be responsible for the design,
installation and maintenance of accounting and cost systems and procedures
throughout the Corporation. He shall have such other powers and perform such
other duties as may be prescribed from time to time by the Board of Directors or
the Chief Executive Officer.
7.16. Assistant Controller.
If the Board appoints one or more Assistant Controllers, each Assistant
Controller shall be vested with all the powers and authorized to perform all
duties of the Controller in his absence or disability. The performance of any
act or the execution of any instrument by an Assistant Controller in any
instance in which such performance or execution would customarily have been
accomplished by the Controller shall constitute conclusive evidence of the
absence or disability of the Controller. Each Assistant Controller shall perform
such other duties as may be prescribed from time to time by the Board of
Directors or the Chief Executive Officer.
7.17. Duties of Officers May be Delegated.
In case of the absence of any officer of the Corporation, or for any
other reason that the Board may deem sufficient, the Board may delegate, for the
time being, the powers or duties, or any of them, of such officer to any other
officer, or to any director, provided a majority of the directors then in office
concur therein.
ARTICLE VIII
POWERS OF EXECUTION
8.1. All checks and other demands for money and notes and other
instruments for the payment of money shall be signed on behalf of the
Corporation by such officer or officers or by such other person or persons as
the Board of Directors may from time to time designate. The signature of any
such officer or other person may be a facsimile if so authorized by the Board of
Directors.
8.2. All contracts, deeds and other instruments to which the seal
of the Corporation is affixed shall be signed on behalf of the Corporation by
the Chief Executive Officer, by the President, by any Vice President, or by such
other person or persons as the Board of Directors may from time to time
designate, and shall be attested by the Secretary or an Assistant Secretary.
8.3. All other contracts, deeds and instruments shall be signed on
behalf of the Corporation by the Chief Executive Officer, by the President, by
any Vice President, or by such other person or persons as the Board of Directors
or the Chief Executive Officer may from time to time designate.
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8.4. All shares of stock owned by the Corporation in other
corporations shall be voted on behalf of the Corporation by such persons and in
such manner as shall be prescribed by the Chief Executive Officer.
ARTICLE IX
INDEMNIFICATION
9.1 (a) The Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether criminal, civil, administrative or investigative,
including actions, suits or proceedings by or in the right of the Corporation,
by reason of the fact that such person is or was a director, advisory director,
officer or employee of the Corporation, or is or was serving at the request of
the Corporation as a director, advisory director, officer or employee of another
corporation, partnership, joint venture, trust, employee benefit plan or other
enterprise, against judgments, fines (including excise taxes assessed with
respect to employee benefit plans), amounts paid in settlement, reasonable
expenses (including attorneys' fees) and other liabilities arising in connection
with such action, suit or proceeding, and reasonable expenses (including
attorneys' fees) incurred in enforcing the rights provided by this Section 9.1.,
to the fullest extent to which indemnity may lawfully be provided pursuant to a
by-law under applicable law. Expenses incurred in defending a civil or criminal
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding, and interest on any such
expenses not paid by the Corporation when due shall be paid by the Corporation
at the rate of interest publicly announced by JPMorgan Chase Bank from time to
time in the City of New York as its prime rate to the fullest extent to which
advancement of such expenses and payment of such interest may lawfully be
provided pursuant to a by-law under applicable law; provided, however, that,
unless otherwise authorized by the Board of Directors, no person shall be
entitled to such advance payment of expenses with respect to any action, suit or
proceeding not by or in the right of the Corporation, unless such person shall
have given the Corporation reasonable notice of the institution of such action,
suit or proceeding and the opportunity to control the defense thereof (with
counsel reasonably satisfactory to such person).
(b) The rights provided by this Section 9.1 are for the benefit of
the persons referred to herein and their respective heirs, executors and
administrators and shall be legally enforceable against the Corporation by such
persons (who shall be presumed to have relied on such rights in undertaking or
continuing any of the positions referred to herein) or by their respective
heirs, executors and administrators. No amendment to or restatement of this
Section 9.1, or merger or consolidation of the Corporation, shall impair the
rights of indemnification provided by this Section 9.1 with respect to any
action or failure to act, or alleged action or failure to act, occurring or
alleged to have occurred prior to such amendment, restatement, merger or
consolidation.
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ARTICLE X
MISCELLANEOUS
10.1. Certificates of Stock.
The certificates of stock of the Corporation shall be numbered and
shall be entered in the books of the Corporation as they are issued. They shall
exhibit the holder's name and number of shares and shall be signed by (i) the
Chairman of the Board, or Vice Chairman of the Board, or President or a Vice
President and (ii) the Treasurer or an Assistant Treasurer or the Secretary or
an Assistant Secretary.
10.2. Transfers of Stock.
Transfers of stock shall be made on the books of the Corporation only
by the person named in the certificate or by his attorney, lawfully constituted
in writing, and upon surrender of the certificate therefor.
10.3. Date for Determining Stockholders of Record.
In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment
thereof, or entitled to receive payment of any dividend or other distribution or
allotment of any rights, or entitled to exercise any rights in respect of any
change, conversion or exchange of stock or for the purpose of any other lawful
action, the Board of Directors may fix, in advance, a record date, which shall
not be more than sixty nor less than ten days before the date of such meeting
nor more than sixty days prior to any other action.
10.4. Registered Stockholders.
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof, and accordingly shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of Delaware.
10.5. Lost Certificates.
Any person claiming a certificate of stock to be lost, stolen or
destroyed shall make an affidavit or affirmation of that fact, and shall if the
Board of Directors so requires give the Corporation a bond of indemnity, in form
and amount and with one or more sureties satisfactory to the Board, whereupon a
new certificate may be issued of the same tenor and for the same number of
shares as the one alleged to be lost, stolen or destroyed. The Board of
Directors in its discretion may, as a prerequisite to the issuance of a new
certificate, impose such additional lawful requirements as its sees fit,
including, but without limiting the generality of the foregoing,
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the requirement that the alleged loss, theft or destruction of the old
certificate be advertised in one or more newspapers published in an appropriate
place or places; and the Board of Directors may in its discretion refuse to
issue a new certificate except upon the order of a court having jurisdiction in
such matter.
10.6. Dividends.
(a) Dividends upon the capital stock of the Corporation may be
declared by the Board of Directors at any regular or special meeting as provided
by the laws of Delaware and the Restated Certificate of Incorporation.
(b) Before payment of any dividend or making any distribution of
profits, there may be set aside out of the surplus or net profits of the
Corporation such sum or sums as the directors from time to time, in their
absolute discretion, think proper as a reserve fund to meet contingencies, or
for equalizing dividends, or for repairing or maintaining any property of the
Corporation, or for such other purposes as the directors shall think conducive
to the interests of the Corporation.
10.7. Seal.
The corporate seal shall have inscribed thereon the name of the
Corporation, the year of its organization and the words, "Corporate Seal,
Delaware."
10.8. Notices.
Whenever, under the provisions of these By-Laws, notice is required to
be given to any director, officer or stockholder, it shall be construed to mean
personal notice, but such notice may be given in writing, by mail, by depositing
the same in the United States mail in a postpaid sealed wrapper, addressed to
such director, officer or stockholder at such address as appears on the records
of the Corporation, or, in the default of other address, to such director,
officer or stockholder at the General Post Office in any city in which the
Corporation maintains an office, and such notice shall be deemed to be given at
the time when the same shall be thus mailed.
10.9. Amendments.
Except as otherwise provided by law, these By-Laws or the Restated
Certificate of Incorporation, these By-Laws may be altered, amended or repealed
(i) at any regular or special meeting of the stockholders by the affirmative
vote of the holders of a majority of the stock issued and outstanding and
entitled to vote thereat or (ii) at any regular or special meeting of the Board
of Directors by affirmative vote of a majority of the directors then in office;
provided, however, that notice of the proposed alteration or amendment shall
have been contained in the notice of the meeting.
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10.10. Fiscal Year.
The fiscal year of the Corporation shall be the calendar year.
10.11. Safe Deposit Boxes.
The Corporation may rent such safe deposit boxes, and may deposit
therein such securities, documents and articles, as the Board of Directors may
designate from time to time. Access to such safe deposit boxes shall be granted
only (i) to any two of the following officers of the corporation attending
together: Chief Executive Officer, President, a Vice President, Secretary,
Treasurer and Controller, or (ii) to any one of the foregoing officers and
either an Assistant Secretary or an Assistant Treasurer, attending together.
10.12. Custodian Accounts.
Any or all of the securities owned by this Corporation may be deposited
with such custodian or custodians as the Board of Directors may designate from
time to time. The custodian shall not be authorized to negotiate such securities
or to take any other action with respect thereto except upon written directions
signed (i) by any two of the following officers of the Corporation: Chief
Executive Officer, President, a Vice President, Secretary, Treasurer and
Controller, or (ii) by any one of the foregoing officers and either an Assistant
Secretary or an Assistant Treasurer.
10.13. Construction of Words.
The use of the masculine gender in any provisions of these By-Laws
shall not be deemed to indicate any distinction based on sex, but shall be
deemed to include the feminine gender wherever it is found.
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